COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Clements and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

LORENZO MOORE 

 MEMORANDUM OPINION* BY 

v. Record No. 2037-99-1 JUDGE WILLIAM H. HODGES 

 OCTOBER 17, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

Alice K. Twiford for appellant. 

Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 *

 Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 Lorenzo Moore, appellant, appeals his convictions for 

possession of cocaine, in violation of Code § 18.2-250, and 

possession of a firearm while in possession of cocaine, in 

violation of Code § 18.2-308.4. Appellant challenges the 

sufficiency of the evidence for both offenses. We conclude the 

evidence was insufficient to prove appellant possessed the 

cocaine and, accordingly, we reverse the convictions. 

FACTS

 On December 18, 1998, at 12:40 a.m., State Trooper M.T. 

Fisher stopped a rental vehicle for defective equipment. As 

Fisher approached the car, he observed the passenger making 
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quick, furtive movements. The driver, appellant, made no 

movements. When Fisher shined his flashlight into the car, he 

immediately saw a 9mm firearm on the console between appellant 

and the passenger. Fisher asked appellant and the passenger to 

exit the vehicle. When appellant complied, Fisher observed a 

torn plastic baggie corner with a small piece of suspected crack 

cocaine on the driver's seat between where appellant's right leg 

would have been and the console. Fisher described the size and 

appearance of the cocaine as being like that of half a dime. 

The baggie and cocaine together were the size of a dime. Fisher 

testified he immediately recognized the substance to be cocaine, 

based on his training and experience. He conceded, however, 

that someone who had no experience with cocaine and its 

packaging might have mistaken the object for trash. Laboratory 

analysis proved the substance was cocaine. 

 Fisher also found a smoking device under the driver's seat, 

marijuana under the armrest of the console between the front 

seats, and a loaded magazine for the weapon under the 

passenger's seat. The passenger produced documentation 

indicating the gun belonged to him and he claimed possession of 

the marijuana. Appellant made no statement. The record does 

not indicate whether the smoking device was for marijuana, 

crack, or some other substance. Nor did the officer have the 

pipe tested to determine the source of the burnt residue on the 

pipe. The officer stated that both occupants had been drinking, 
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but did not testify that either appeared to be under the 

influence of any other substances. The rental car was 

registered to a company, not to appellant or the passenger. 

ANALYSIS

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 

In reviewing that evidence, however, "we 

cannot . . . disregard credible, unimpeached 

evidence of the Commonwealth which 

exculpates the defendant and creates a 

reasonable doubt." A conviction based on 

circumstantial evidence may be sustained 

only if the evidence, when taken as a whole, 

excludes every reasonable hypothesis of 

innocence. Thus, the evidence must be 

wholly consistent with guilt and wholly 

inconsistent with innocence. 

Scruggs v. Commonwealth, 19 Va. App. 58, 61, 448 S.E.2d 663, 

664-65 (1994) (citations omitted). 

 "To sustain a conviction for possession of a controlled 

substance in violation of Code § 18.2-250, the evidence must 

prove beyond a reasonable doubt that the accused was aware of 

the presence and character of the controlled substance." Jones 

v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864 

(1994) (citation omitted). 

"To support a conviction based on 

constructive possession, 'the Commonwealth 

must point to evidence of acts, statements, 
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or conduct of the accused or other facts or 

circumstances which tend to show that the 

defendant was aware of both the presence and 

character of the substance and that it was 

subject to his dominion and control.'" 

White v. Commonwealth, 24 Va. App. 446, 452, 482 S.E.2d 876, 879 

(1997) (citations omitted). "Evidence merely that the accused 

was in the proximity of controlled substances is insufficient, 

however, to prove that the accused was aware of the presence and 

character of a controlled substance." Jones, 17 Va. App. at 

574, 439 S.E.2d at 864. 

 The Commonwealth contends the smoking device found under 

appellant's seat connects appellant with the cocaine. We 

disagree. The device was not in plain view, and no evidence 

proved appellant knew it was under the seat or that he had used 

it. Appellant made no furtive movements to suggest he put the 

device under the seat. Further, the evidence does not prove 

that the device was used to smoke cocaine. Therefore, the 

smoking device does not tie appellant to the cocaine in any way. 

 The Commonwealth also argues that the trial court could 

infer appellant's knowledge of the cocaine's presence and 

character because he was sitting on the cocaine. However, 

regardless of whether appellant was seated on or next to the 

cocaine, it was small enough to go unnoticed. Even if he knew 

of its presence, no evidence showed he was aware of its 

character or that he exercised any dominion and control over it. 

Fisher candidly testified that someone without experience in 
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handling cocaine could have mistaken the package for trash. No 

evidence proved appellant had any experience with cocaine. 

 The passenger made the furtive movements and claimed 

ownership of the gun and the marijuana. Appellant made no 

statements, nor exhibited any conduct, and no circumstances 

existed from which one could infer that he was aware of the 

presence or character of the cocaine. Therefore, having failed 

to exclude reasonable hypotheses of innocence, the evidence does 

not prove beyond a reasonable doubt that appellant possessed the 

cocaine. Finding the evidence insufficient, we reverse the 

possession of cocaine conviction. Without the predicate offense 

of possession of cocaine, we also reverse the conviction for 

possession of a firearm while in possession of cocaine. 

 Reversed and dismissed.